Assistant Commissioner of Income-tax, V. M/s. Symantec Software India Pvt. Ltd., Pune

ITA 538/PUN/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6999 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHASHI B PRASAD
• Keywords: Transfer pricing
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 538/PUN/2015 %' ( ')( / ASSESSMENT YEAR : 2010-11 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 6, PUNE ....... / APPELLANT ' /VS. M/S. SYMANTEC SOFTWARE INDIA PVT. LTD., ICON, SURVEY NO. 3/8, BANER ROAD, PUNE 411045 PAN : AAACV6015F / RESPONDENT ASSESSEE BY : SHRI PRAMOD ACHUTHAN REVENUE BY : SHRI SHASHI B. PRASAD / DATE OF HEARING : 06-03-2017 / DATE OF PRONOUNCEMENT : 06-03-2017 * / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ASSESSMENT ORDER DATED 24-02-2015 PASSED U/S. 143(3) R .W.S. 144C AND 92CA OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT) FOR THE ASSESSMENT YEAR 2010-11. 2. IN APPEAL THE DEPARTMENT HAS RAISED FOLLOWING GROUNDS : 1. THE ORDER OF THE DISPUTE RESOLUTION PANEL U/S. 144 C(5) OF THE INCOME-TAX ACT IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMS TANCES OF THE CASE. 2 ITA NO. 538/PUN/2015, A.Y. 2010-11 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE DISPUTE RESOLUTION PANEL HAS ERRED IN EXCLUDING FCS SOFTWAR E LTD., INFOSYS TECHNOLOGIES LTD AND ECLERX SERVICES LTD FROM THE F INAL SET OF COMPARABLES. 3. FOR THIS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE DISPUTE RESOLUTION PANEL MAY BE VA CATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL DURING THE COURSE OF APPELL ATE PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL. 3. SHRI PRAMOD ACHUTHAN APPEARING ON BEHALF OF THE ASSE SSEE SUBMITTED AT THE OUTSET THAT THE ASSESSEE HAS CARRIED THE ISSUES RELATING TO TRANSFER PRICING IN MUTUAL AGREEMENT PROCEDURE (MAP) AND THE SAME HAS BEEN SETTLED. THE ASSESSEE HAD ALSO FILED A PPEAL AGAINST THE ASSESSMENT ORDER DATED 24-02-2015 FOR ASSESSMENT YEAR 2010-11 IN ITA NO. 591/PN/2015. THE SAID APPEAL WAS WITHDRAWN B Y ASSESSEE IN THE LIGHT OF MAP PROCEEDINGS. THE LD. AR PLACED ON RECOR D A COPY OF THE ORDER OF TRIBUNAL IN ITA NO. 591/PN/2015 DATED 28-12 -2016 AND THE COPY OF MAP PROCEEDINGS FOR ASSESSMENT YEARS 2006 -07 TO 2010-11 DATED 29-06-2016. THE LD. AR SUBMITTED THAT SINCE THE IS SUES RAISED BY THE DEPARTMENT IN APPEAL RELATE TO TRANSFER PRICING, TH E PRESENT APPEAL OF THE DEPARTMENT HAS BECOME INFRUCTUOUS IN VIEW OF THE FACT THAT THE TRANSFER PRICING ISSUES HAVE BEEN RESOLVED IN MAP PROCEEDIN GS. 4. SHRI SHASHI B. PRASAD REPRESENTING THE DEPARTMENT FAIR LY ADMITTED THAT THE GROUNDS RAISED IN THE PRESENT APPEA L BY THE DEPARTMENT RELATE TO TRANSFER PRICING ISSUES. IN VIEW OF MAP PROCEEDINGS THE APPEAL OF THE ASSESSEE FOR IMPUGNED ASS ESSMENT YEAR HAS BEEN DISMISSED AS WITHDRAWN. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDER OF CO-ORDINATE BE NCH OF THE TRIBUNAL IN ITA NO. 591/PN/2015 (SUPRA). IT IS AN UNDISPUT ED FACT THAT THE ASSESSEE HAS RESORTED TO MAP FOR RESOLUTION OF TRAN SFER PRICING 3 ITA NO. 538/PUN/2015, A.Y. 2010-11 ISSUES. THE APPEAL FILED BY THE ASSESSEE AGAINST THE IMPUG NED ASSESSMENT ORDER WAS DISMISSED AS WITHDRAWN ON ACCOUNT OF MAP. IN THE PRESENT APPEAL, THE DEPARTMENT HAS ASSAILED TRANSFER PRICING ISSUE. IN VIEW OF THE FACT THAT THE ISSUE HAS ALREADY BEEN RESO LVED IN MAP PROCEEDINGS, THE PRESENT APPEAL OF THE DEPARTMENT HAS B ECOME INFRUCTUOUS. 6. THE LIBERTY IS GRANTED TO THE DEPARTMENT TO REVIVE T HE APPEAL BY FILING MISCELLANEOUS APPLICATION IN CASE THE DEPARTMENT IS STILL AGGRIEVED. 7. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSE D AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT AFTER HEARING OF APPEAL ON MONDAY, THE 06 TH DAY OF MARCH, 2017. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 06 TH MARCH, 2017 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-2, NASHIK 4. ' / THE CIT-2, NASHIK 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, 5 6 / ASSISTANT REGISTRAR, ,- , / ITAT, PUNE